Document jmYrV64v337N0BByenBqyQ4ZR

c nowing the laws that apply to asbestos abatement Kis crucial, as penalties for non-compliance can be severe. Last month, ASBESTOS ISSUES '89 presented Part I of ` Tt's the Law, ' ' in which EPA and OSHA regula tions were discussed. This month, DOT requirements are covered, plus the future of asbestos regulations. The Department of Transportation (DOT) regulates asbestos transportation activities in accordance with the provisions of the Hazardous Materials Transporta tion Act of 1975, 49 U.S.C. 1801 et seq. (HMTA), which established a comprehensive framework for the regulation of hazardous materials transportation activ ities. The HMTA regulatory program is applicable to all people who transport, or cause to be transported or shipped, hazardous materials and all who manufac ture, fabricate, re-condition, repair, test or mark IT'S THE LAW Understanding the maze of regulations governing the handling, removal and disposal of ACM. PART II By Daniel M. Steinway packages or containers for use in the transportation of hazardous materials 49 U.S.C. 1804(a). Pursuant to its authority under HMTA, the DOT has designated asbestos as a hazardous material for purposes of transportation, and it has prescribed requirements for shipping papers, packaging, marking, labeling and transport vehicle placarding applicable to the shipment and transportation of asbestos materials, see 49 C.F.R. 172.101. In accordance with these re quirements, commercial asbestos must be transported in: 1. rigid, leak-tight packagings; 2. bags or other non-rigid packagings in closed freight containers, motor vehicles or rail cars that are loaded by, and for, the exclusive use of the consignor and unloaded by the consignee; or 3. bags or other non-rigid packag ings that are dust and sift-proof in strong outside fiberboard or wooden boxes, see 49 C.F.R. 173.1090. PLAINTIFF'S i EXHIBIT AL-1530 18 ASBESTOS ISSUES '89--FEBRUARY ALCOAOOOOOQ7931 Our New WePutOurse InYourPosi First we donned conventional Powered'AirPurifying Respirators in the same harsh conditions your crews encounter daily. That's when we learned comfort was essential in develop ing a PAPR. Now comfort is no longer a luxury. The new Willson PAPR features a low-profile, beltmounted blower that comfortably distrib utes weight behind and out of a worker's way to eliminate wearer fatigue and interferences caused by awkward facepiece-mounted blowers. The Willson PAPR is equipped with an economical R73 HEPA filter that has multiple uses within the Willson 6000 Series line of respirators. Interchangeability among these respirators reduces inventory costs. Facepieces can be quickly converted to virtually any breathing configuration--from PAPR to air-purifying to air-sup plied. or vice versa, with a few simple component changes. So to specify the most com fortable PAPR. put yourself in your workers' position. Then con tact your Willson distributor or Willson Safety Products. P.O. Box 622. Reading. PA 19603-0622. (215) 376-6161. s But ti-r- rrr uArmfiagt exaP*f <c CIRCLE DEADER SERVICE NO. 39 ALCOA0000007932 t WMKon Safety Products A Oi of WGM Safety Carp Specific regulations have been created for the transport of asbestos materials by highway. Under these regulations, asbestos must be loaded, handled and unloaded, and any asbes tos contamination of transport vehicles removed, in a manner that minimizes occupational exposure to airborne and the regulations are currently in effect. The HCS standard will have a signifi cant impact on the duties of nonmanufacturing employers under other federal environmental laws. Because of the expanded federal HCS standard, non-manufacturing employ "Asbestos must be loaded, bandied and unloaded in a manner that minimizes occupational exposure to airborne asbestos particles released incidental to transportation." asbestos particles released incidental to transportation, see 49 C.F.R. 177.844. Additional motor carrier safety regulations apply to common, contract and private carriers of prop erty by motor vehicle as defined under these regulations, see 49 C.F.R. Parts 390-397. FUTURE ISSUES There have been several recent ac tions taken by the EPA, OSHA and various state legislatures effecting or relating to the regulation of asbestos in buildings and facilities. In addition, several federal legislative initiatives are being considered by Congress per taining to ACM. 1. OSHA Worker Right-to-Know Regulations Now Apply to All Employers. OSHA has promulgated a revised federal hazard communica tion standard (HCS) that covers all employers with employees who are exposed to hazardous chemicals in their workplace, see 52 Fed. Reg. 31,852, Aug. 24, 1987. These regula tions require that non-manufacturing employers establish hazard com munication programs that provide in formation about the hazardous chemicals to which their employees are exposed. This information must be conveyed by labels (or other forms of warning) on containers, the preparation and distribution of material safety data sheets and the development and implementation of employee training programs, see 40 C.F.R. 1910.1200(a), as revised. This standard had originally been stayed in federal court. The stay has been lifted ers must now comply with the infor mation reporting requirements under sections 311 and 312 of the Superfund Amendments and Reauthorization Act of 1986 (SARA). These sections require employers to submit a material safety data sheet for all hazardous chemicals at their facilities (or, as an alternative, a list of the designated hazardous chemicals) and emergency and hazardous chemical inventory forms to the appropriate state and local emergency planning committees and local fire departments according to statutorily specified schedules. As a result, those employers holding hazardous chemicals in amounts greater than the specified threshold quantities will be required to provide certain chemical hazard information to their respective state and local committees and local fire depart ments, see 52 Fed. Reg. 31,859. As of Sept. 23, 1987, chemical manufacturers, importers and distributors must ensure that material safety data sheets are provided with shipments of hazardous chemicals to non-manufacturing employers or distributors. All employers were required to be in compliance with the standard by May 23, 1988, see 40 C.F.R. 1910.1200(j), as revised. However, court challenges have been filed by construction industry organizations against this new stan dard, contending that the construc tion industry should be subject to a separate standard due to its particular industry characteristics. 2. OSHA Asbestos Standard. In the 1988 case AFL-CIO vs. Secretary of Labor (C.A. No. 86-1360). the U.S. Court of Appeals for the District <>f Columbia Circuit has upheld the PEL of 0.2 f/cc established in OSHA asbes tos regulations. In this case, which was brought by the Asbestos Informa tion Association, North America and other petitioners that represented industrial organizations as well as various labor organizations, the court held that the new permissible ex posure limit of 0.2 f.cc was techno logically feasible. It also directed OSHA to re-examine certain other re quirements under the new OSHA asbestos regulations. Specifically, the court held that OSHA must re consider "the issue of disaggregating the general industry standard to af ford workers the benefits of more stringent standards in areas where they are feasible." This order was issued by the court to determine whether a 0.1 f cc PEL was feasible for the automotive brake and repair industry. The court also directed OSHA to review its asbestos respiratory policy and to re-examine more "vigorous measures" to reduce smoking-related asbestos risks. In addition, OSHA must consider the promulgation of a new short-term exposure limit standard within 60 days. In this case, however, the court struck down OSHA's ban on the spray ing of asbestos products. Finally, in response to labor union claims, the court directed OSHA to address other areas under the new asbestos regulations. First, OSHA is required to clarify the regulations that a construction industry employer must resume air monitoring when a change in workplace conditions could result in exposures above the action level. This requirement is presently unclear under the current regulations. OSHA must also consider whether to use bilingual warnings or universal symbols for warning signs and labels, and whether to expand the compe tent person requirement. Further more, in accordance with the court's opinion, OSHA must clarify the smallscale, short-duration exemption under the present regulations and decide whether to require all con struction industry employers to file reports prior to undertaking an asbes tos abatement project or whether to impose other reporting requirements. It will no doubt take OSHA several months to respond to the court's deci sion. OSHA has already issued a newshort-term excursion limit of 1 f cc 20 ASBESTOS ISSUES '89--FEBRUARY ALCOAO 000007933 Join Us in Anaheim For the Sixth Annual Asbestos Abatement Conference and fhe Largest International Exposition Anaheim Conference Event for fhe Asbestos Exchange ideas and information with industry professionals Attend informative technical sessions and seminars Visit exhibits featuring the latest asbestos abatement products and services Control Industry March 29-31, 1989 Anaheim Convention Center Anaheim, California CIRCLE READER SERVICE NO. 101 For details, write or call the NAC at: 1777 Northeast Expressway Suite 150 Atlanta, GA 30329 (404) 633-2NAC ivAc National Asbestos Council Inc A non-profit association of multidisciplinary asbestos control professionals ALCOA0000007934 average over a sample period pf 30 minutes fot asbestos exposure. OSHA will probably issue other proposed changes through their normal rule- making process. 3. New EPA Enforcement Strategy. Over the past few years, the EPA has stated that strict enforcement of the asbestos NESHAP regulations is one of the agency's highest priorities. Con sistent with this philosophy, the EPA has issued its revised strategy for the implementation and enforcement of asbestos'demolition and renovation requirements. According to the March 1988 guidance, the EPA plans to focus more of its efforts on contractor compliance with asbestos NESHAP requirements and states that "inspec tion efforts focused on contractors should result in a more resourceeffective enforcement action." This new strategy is expected to result in an increased number of judicial actions brought against contractors who violate the asbestos NESHAP requirements. In order to implement this strategy, the EPA has established a computer tracking system to monitor contractor compliance with EPA asbestos regula tions. This tracking system includes information on the total number of past NESHAP violations committed by an asbestos abatement contractor. The EPA expects to make this infor mation available to any building owner/operator who wishes to obtain additional information on the qualifications of a contractor. debarment list because of recurring asbestos NESHAP violations. The EPA's proposal is the first discretion ary listing action brought against a contractor for asbestos violations. If listed, this contractor will be banned from receiving any contract for removal work where federal funds In contrast to the federal requirements under AHERA, which only apply to school buildings, L state laws generally pertain to all types of ri3EUi& buildings." EPA NESHAP guidance indicates that contractor listing is a useful en forcement option that has significant deterrent effects, particularly on contractors involved in the asbestosin-schools programs. As an example, the agency has proposed placing a large New York City demolition contractor on the EPA contractor are involved. The EPA's plans to step up its asbes tos enforcement program will have dramatic repercussions for asbestos abatement contractors, making it imperative that contractors carefully review and comment on any new asbestos NESHAP regulations that the agency may promulgate. REGULATIONS AT A GLANCE REGULATIONS MANDATED BY DOT Hazardous Materials Transportation Act of 1975 (HMTA). Established a comprehensive program that governs the regulatory action of the transportation industry. The HMTA, under the authority of the DOT, established that asbestos is a hazardous material .subject to the regulations regarding transportation of hazardous materials. RECENT ACTIONS TAKEN BY EPA AND OSHA OSHA Worker Right-to-Know Regulations Now Apply to All Employers. A revised federal hazard communication standard (HCS) that covers all employers who have employees that are exposed to hazardous chemicals. This action requires that employers implement hazard communication pro grams that will provide employees with informa tion about the chemicals to which they are exposed. OSHA Asbestos Standard. OSHA is required under court order to ensure that the permissible exposure limit (PEL) of 0.2 f/cc be technologically feasible. OSHA must also take measures to reduce smokingrelated asbestos risks. EPA Enforcement Strategy. The EPA will take in creased steps to ensure that enforcement actions against contractors are being taken seriously. The result--a computer tracking system to monitor con tractor compliance with EPA NESHAP regulations. STATE DEVELOPMENTS Fbrty states have now enacted some form of asbestos legislation. Of these states, 32 have adopted asbestos -contrader licensing or certification programs. Some states appear to be taking the lead by extending asbestos regulation to buildings other than schools. Safe Drinking Water and Tbxics Enforcement Act (Proposition 65). California voters enacted Prop. 65 to protect drinking water supplies from exposure to toxic chemicals. Many states have considered similar legislation, however, these states have halted legislation and are now taking a wait-andsee attitude. State legislators are reviewing the law and considering what implications exist for business owners, as well as for the state as a entity within itself. FEBRUARY--ASBESTOS ISSUES '89 ALCOAOOOOOQ7935 21 4. Federal Legislation and Regula tions. Several federal legislative initiatives relating to ACM are presently being considered by Con gress. In response to a number of concerns, legislation extending AHERA deadlines to perform inspec tions and prepare management plans were enacted into law. buildings. Passage of this legislation may occur in the iOlst Congress, although it will probably depend on the implementation of the new asbestos-in-schools program. The EPA has issued its report on the need for asbestos controls in public and commercial buildings. The report recommends a four-part program that ifThe new California regulations clarify that Proposition 65 includes any employer who, at the time of the discharge or exposure in it. question, employed 10 employees." In addition to AHERA activity, there has been a great deal of atten tion focused on S. 981, the Federal Building Asbestos Hazard Abatement Act of 1987. This legislation, spon sored by Sen. Stafford, is substantially identical to S. 2300, which was intro duced in the 100th Congress. The legislation received some considera tion, but no action was taken. Similar legislation (S. 1809) would require the EPA to set standards for the identification and abatement of hazardous asbestos materials in federal buildings. This legislation directs the EPA to promulgate regula tions relating to inspection, response actions, operations and maintenance, periodic surveillance, transportation and disposal of asbestos materials in federal buildings. Owners of "covered" buildings would be directed to develop and implement asbestos management plans for these buildings. This act would not allow any response person to inspect for ACM in buildings, prepare a management plan or design or conduct response actions unless the person was accredited by a state or an EPA-approved course. S. 1809 also requires that asbestos manufac turers submit information on their asbestos products to the EPA. Besides S. 981 and S. 1809, U.S. Rep. James J. Florio, D-NJ., has introduced legislation imposing asbestos controls on all government facilities. Rep. Florio has called this approach an "interim step" requiring asbestos inspections and management plans for all public and commercial addresses the present asbestos hazards in public and commercial buildings. This program would at tempt to: 1. increase the availability of accredited asbestos inspectors and abatement professionals; 2. develop procedures for dealing with thermal system insulation; 3. improve the enforcement of existing asbestos regulations; and 4. assess the effective ness of the AHERA school program. However, it would not include an AHERA-based regulatory program. The EPA is also planning to propose changes in the current NESHAP pro gram requirements. Most of these changes will probably relate to asbes tos disposal requirements, including specific work practices for approved disposal facilities and will probably make both the waste operator and the generator liable for violations of NESHAP requirements. 5. (a) State Developments. According to recent estimates, 40 states have now passed some type of asbestosrelated legislation. Of these states, 32 have adopted an asbestos contractor licensing or certification program. In 1987, asbestos contractor licensing passed in the states of Arizona, Delaware, Hawaii, Idaho, Nevada, Oregon, Texas and Wisconsin. In contrast to the federal require ments under AHERA, which only apply to school buildings, state laws generally pertain to all types of buildings. The states are establishing a trend that places more types of buildings under the licensing require ments. Training and certification requirements imposed under statlaws generally only apply to ashestncontractors and workers. Very few states regulate inspectors and con sultants involved in asbestos-related activities. A number of notable developments have occurred in New York state, including a law requiring contractors involved in the removal of asbestos or ACM to be licensed and that asbestos workers associated with asbestos proj ects be certified. The New York Department of Labor has now promul gated regulations implementing its responsibilities under this law. These regulations cover licensing and certifi cation requirements, and impose con tractor recordkeeping, performance and clearance requirements. In addition, the New York Depart ment of Health has promulgated regulations establishing requirements and qualifications for the sponsors of training courses which are designed to educate asbestos workers regarding the protection of public health. Com pletion of a state- or EPA-approved training course is a prerequisite for asbestos worker certification under New York law. The state of New York has also enacted another asbestos-related law that limits the liability of contractors involved in asbestos abatement proj ects undertaken for the state or by court order. Under this legislation, contractors will be liable for personal or property damage arising out of abatement projects only if evidence shows "negligence, gross negligence or reckless, wanton or intentional misconduct" on the part of the con tractor. The City of New York's municipal regulations regarding the training and testing of asbestos abatement workers have been upheld as valid. These regulations were issued as part of the New York City ordinance governing building renovation or demolition proj ects that disturb asbestos materials Under this ordinance, all buildings ' that are altered, renovated or demol ished in New York City must be initially inspected for asbestos. Those build ings not meeting specified standards are subject to asbestos abatement by certified asbestos workers. Each state is required to adopt an accreditation plan for the training, testing and certification of inspectors, management planners, abatement (continued on peg* 72) 22 ASBESTOS ISSUES 89--FEBRUARY ALCOAOOOOOO 7 936 IT'S THE LAW '(conttnmd from pog* 22) project designers, contractors and workers Involved in the federal asbestos-in-schools program pursuant to AHERA. These plans must be based on the model program developed by the EPA, and must be adopted within 180 days after the start of the first regular state legislative session following publication of the model plan. 5. (b) Proposition 65. Proposition 65, the Safe Drinking Water and Tbxics Enforcement Act of 1986, was adopted as a California law under the state's citizen initiative process, California Health and Safety code 25249.5 et seq. This law is aimed at protecting drinking water supplies from exposure to toxic chemicals. Tbxic chemicals covered by Proposi tion 65 include those chemicals known to the state to cause cancer or reproductive toxicity and that have been specifically listed by the gover nor under the law. Asbestos is included on this list. Specifically, the law prohibits people in the course of doing business from knowingly discharging or releas ing listed toxic chemicals "into water or onto or into land where such chemicals pass or will probably pass into any source of drinking water," see California Health and Safety Code 25249.5. The new California regulations clarify that Proposition 65 governs any employer who, at the time of the discharge or exposure in question, employed 10 employees either parttime or full-time. In addition, busi nesses are also prohibited under the law from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving a clear and reasonable warning of the exposure, see California Health and Safety Code 25249.6. Legislation similar to Proposition 65 has been introduced in more than 20 states. However, none of these bills have been enacted into law, and many states are waiting to review the results of the implementation of Proposition 65. The ever-expanding regulation of asbestos materials has broad implica tions for owners and occupiers of buildings containing, or suspected of containing, asbestos materials. Gener ally speaking buildings constructed prior to the mid-1970s are likely to contain asbestos fireproofing and in sulating materials. Asbestos may also be found in wall board and wall finishes, floor tiles, ceiling tiles, roof structures and other building components. A facility survey for the presence of asbestos-containing materials should be considered, whether conducted independently or as part of a general environmental audit. Asbestos in spection, testing, analysis and abate ment activities are best conducted with the assistance of a qualified en vironmental consultant and legal counsel in order to properly address technical and legal regulatory com pliance issues and to avoid potential liability. Daniel M. Steinway, Esq. is a partner in the law firm of Anderson, Baker, KiU & Olick, Washington, D.C. We'd Like To Give You A Piece OfOur Minds!! THE INSTITUTE FOR ENVIRONMENTAL EDUCATION OFFERS THE FOLLOWING COURSES: The Institute's courses are EPA accredited and are approved by most jurisdictions that presently require separate approval Each course is offered monthly at the institute in Boston, or at a location that best suits your needs- Our on-site training does not require a minimum number of participants. AHERA CONTRACTOR/ SUPERVISOR: Asbestos Abatement Procedures and Practices AHERA WORKERS: Asbestos Abatement Procedures and Practices AHERA Asbestos Inspectors Training AHERA Asbestos Management Planners Training AHERA Operations and Mainte nance Training PLUS, Annual Refresher Training for all the above courses Please call us'at (617) 935-7370 to receive a course schedule or jar additional information. INSTITUTE FOR ENVIRONMENTAL EDUCATION 208 West Cummings Park, Boston (Wobum), MA 01801 (617) 935-7370 72 CtRCU RCAOCR SERVICE Ha MO ASBESTOS ISSUES '89--FEBRUARY ALCOA0000007937 HAZARDOUS MATERIAL. When it comes to the hazardous removal of asbestos, asbestos from schools, federal, private and public buildings. there's nothing safer than Shurtape So if you're involved in dn asbestos abatement project, Shurtape's cloth and specialty tapes are ideal for the stick with Shurtape. Because using just any ordinary effective and efficient installation of the containment areas tape could of an asbestos abatement project, as well as numerous other uses in and around the job site. Our Shurprep System combines with qualified contrac haz tors to insure the proper removal of hazardous wastes and ardous. .. Shurtape ploootaio>tisot.yr. s: x.sec: fu <9^43:4 -jj a CIRCLE READER SERVICE NO. SS ALCOAO 000007938